An African-American employee who worked for BMW on a “contingent” basis through a staffing agency for several years—during which time she was purportedly subjected to race-based comments by supervisors, disproportionally deprived of a permanent position, and subjected to a number of other adverse employment actions—plausibly alleged race bias and hostile work environment claims. Denying the defendants’ motion to dismiss, a federal court in Illinois determined that she alleged sufficiently severe or pervasive conduct to create an actionable HWE and rejected the defendants’ attempt to “shoehorn” her race discrimination claim into a “failure-to-hire” analysis (Savoy v. BMW of North America, LLC, June 4, 2018, Castillo, R.).

Hired through staffing agency. The employee worked for BMW though a staffing agency that BMW used to hire staff on a “contingent” basis until it hired them as permanent employees. In 2007, she began working as the coordinator for BMW’s central region mini market division. Though a supervisor allegedly told her in 2013 that she would become a permanent employee, the position was given to a white BMW employee instead. She also claimed that BMW hired several other white contingent workers for similar positions.

Racially charged remarks. She also claimed that she regularly experienced or witnessed race discrimination while working at BMW. For instance, she claimed that a VP commented that her division “really is black” while reviewing the organizational chart. He also remarked while at a fundraiser on Chicago’s south side, “what is this, [t]he Chitlin Circuit?” In July 2016, she began working for a new supervisor, who purportedly asked her about her age, marital status, how many children she had, and whether they all had the same father. He also used sexual and demeaning language in front of other employees, including comments about oral sex.

Internal complaint. A couple of months later, in September 2016, she told him that she was dissatisfied with BMW’s failure to hire minority contingent workers and that she felt she had not been hired permanently because of her race. He responded that although she did her job well, she would never be hired as a permanent employee, he was “surprised BMW hasn’t been sued,” and “it sucks but that’s the price if want to play” because “[t]hat’s just how the Germans operate.”

Negative actions. The next day, she received a work schedule with reduced hours. The supervisor also subsequently asked her to sign a temporary work contract, while others were not required to do so. He also began criticizing her performance and delegated her responsibilities to less qualified employees and interns. In October, he falsely accused her of time-card fraud.

EEOC charge. On November 2, she filed an EEOC charge alleging gender and race bias and retaliation. Afterwards, she received a negative performance review and her supervisor asked her to manage his travel arrangements even though it was not part of her job. On April 17, 2017, she was placed on administrative leave so that BMW could investigate her EEO claims. The next day, her supervisor allegedly stated in a conference call with BMW employees that she was on a “much-needed vacation” and should not be “disturbed.” She filed the instant action against the staffing agency and BMW, and as of the filing, remained on administrative leave.

Exhaustion of HWE claim. At the outset, the court rejected the defendants’ assertion that her HWE claims were not reasonably related to her EEOC complaint. Notably, she alleged several discriminatory acts in her charge, including that her work hours were reduced, she was accused of falsifying timesheets, she was not promoted to a permanent position, and she was required to enter into a contract different from others. These several and different acts of discrimination involved the same people and circumstances as her lawsuit, and her EEOC charge alleged that the discriminatory conduct was a “continuing action.”

Moreover, caselaw did not support the defendants’ “rigid proposition” that a discrimination claim in an EEOC charge cannot be reasonably related to a lawsuit’s HWE claim as a matter law. Rather, on a case-by-case basis, courts look at whether the EEOC charge and allegations in a lawsuit are “reasonably related” because they “describe the same conduct and implicate the same individuals,” or because the HWE claim “could have developed from the EEOC’s investigation of the charges before it.” Here, the employee’s EEOC charge met these requirements.

Heard enough. The employee also plausibly alleged that she was subjected to a sufficiently severe or pervasive HWE that was due to her race. The court rejected the defendants’ assertion that her claim failed since she did not personally hear some of the allegedly racially charged comments. Rather, the comments that she claimed she did hear, as well as the “host” of other racist remarks in her presence, were enough at this stage of litigation.

Bias claim advances. The court rejected the defendants’ attempt to “shoehorn” her race discrimination claim into a “failure-to-hire” analysis. To survive a motion to dismiss, she needed only to allege that an adverse employment action was taken against her, and she did so by alleging reduced work hours; failing to promote her to a permanent position with additional benefits; placing her on administrative leave; delegating her job duties to less-qualified employees; and assigning her tasks that might stunt the growth of her career. She also didn’t need to assert that she applied for a permanent position as her pleadings suggested that BMW’s contingent employees were promoted to permanent employees “after they have proven to be capable at their jobs” and that there was no application process.

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